Legal History Blog

Tuesday, December 18, 2018

Via the American Society for Legal History, we have the official citation for the Cromwell Article Prize, which was awarded to Noam Maggor (Cornell University):

The
William Nelson Cromwell Foundation offers an annual prize of $5,000 for the
best article in American legal history published by an early career
scholar. Articles published in the field of American legal history,
broadly conceived, will be considered. There is a preference for articles
in the colonial and early National periods. Articles published in
the Law and History Review are eligible for the Surrency Prize
and will not be considered for the Cromwell Article Prize.

2018
recipient: Noam Maggor, “To Coddle and Caress These Great Capitalists: Eastern
Money, Frontier Populism, and the Politics of Market-Making in the American
West,” American Historical Review 122
(February 2017): 55-84.

Committee
citation: In our deliberations, committee members were struck by the
originality and ambition of Maggor’s argument.Maggor recovers an overlooked history of state constitution-making in
the Gilded Age, connecting late nineteenth-century legal and political
development in the American West to the transformation of the United States
into a modern industrial nation, the expansion of finance capitalism, and the
integration of multiple peripheries into the world economy.While many scholars have viewed the
consolidation of a national market after the Civil War as inevitable,
interpreting the growth of American government as a reaction to a largely
apolitical process of industrialization, Maggor casts American political
development as “fully constitutive of economic change.”Exploring contingent and contested
deliberations over water rights, labor protections, and the power of the state
to regulate corporations, Maggor reveals how market integration fanned ongoing
struggles over the distribution of material resources, the transparency and
legibility of local markets to outside investors, and the geography of the
marketplace (whether the Western states would serve the larger economy
primarily as a source of raw materials or could become economic centers in
their own right).

Maggor’s
richly textured story describes how financiers from major East Coast cities
went west after the Civil War in search of investment opportunities,
transforming the economies and landscapes of the frontier.As money flowed from New York and Boston to
Colorado, the Dakotas, Idaho, Montana, and Wyoming, western settlers in the
1870s and 1880s lobbied for statehood, splintering power away from the federal
government even as a national market was emerging.Unlike the top-down institution-building that
marked developing economies elsewhere in the world, the drafting of state
constitutions in the American West brought together settlers of vastly
different social and economic standing, from farmers and miners to lawyers and
small businessmen, who would attempt to establish democratic controls over the
market.Rejecting federal-style
constitutions that laid out basic principles and left policy details to the
legislature, western delegates engaged in robust debate about whether to “prioritize
actual settlers over investors, . . . democratic processes over financial
imperatives and relative regional autonomy over the prerogatives of a national
market.”Maggor paints a fascinating
portrait of the legal consciousness of the delegates, whose dynamic experiences
as migrants and settlers led them to privilege pragmatism over formalism and
conditions on the ground over abstract ideas.Delegates proposed innovative water rights regimes, corporate regulatory
schemes, and labor protections that departed from established practice back
east and worked around anti-regulatory Supreme Court precedent.And when corporate representatives warned
that the proposals would inhibit outside investment, the delegates compromised
in ways that varied from state to state.Maggor labels the resulting constitutional patchwork “a complex new
geography” that was “not a clear triumph for any particular interest,” but
instead “bore the mark of the divides and disagreements that had surfaced
during the writing process.”

The
committee was very impressed with how Maggor brings together major issues in
legal, political, and economic history, connecting a series of scholarly
literatures in, as one committee member said, “a startling and excellent way.”Maggor’s account of multiple state
constitutional conventions is deeply researched, and his keen eye for detail
captures lives and experiences in ways that show how individual agency can
matter even in stories of structural transformation.With elegant writing and an engaging
narrative style, Maggor makes a big and original contribution to multiple
fields and will spark important new conversations in the legal history of
economic development, regulation, and populist constitutionalism.We all believe that Maggor’s article is a
true achievement that deserves recognition by the Cromwell Foundation.

The members of this year's Cromwell article prize subcommittee were: H. Tomas Gomez-Arostegui (Lewis and Clark) and Erika Pani (Colegio de México).

Via the American Society for Legal History, we have the official citation for the Cromwell Book Prize, awarded this year to Cynthia Nicoletti (University of Virginia):

The
William Nelson Cromwell Foundation awards annually a $5,000 book prize for
excellence in scholarship in the field of American Legal History by an early
career scholar. The prize is designed to recognize and promote new work
in the field by graduate students, law students, post-doctoral fellows and
faculty not yet tenured. The work may be in any area of American legal
history, including constitutional and comparative studies, but scholarship in
the colonial and early national periods will receive some preference. The
prize is limited to a first book, wholly or primarily written while the author
was untenured.

Committee citation: Cynthia
Nicoletti’s Secession on Trial: The
Treason Prosecution of Jefferson Davis ingeniously creates a page-turner
out of a trial that never happened. In vivid detail and compelling prose
Nicoletti uses the federal government’s abandoned prosecution of Jefferson
Davis to challenge the conventional wisdom among historians and legal scholars
that the verdict of the battlefield settled the legality of secession. Nicoletti
instead illuminates the uncertainty among lawyers, politicians, and the
populace on secession’s legality and thus the availability of a treason
prosecution for those who had seceded. Along the way, she also argues for the
centrality of law and legal thinking in post-Civil War America’s political
culture, displaying both the law’s power and powerlessness. Former Unionists
and Confederates alike showed continued faith and fidelity to law. Indeed,
Nicoletti highlights examples of actors high and low resisting the push of
politics to adhere to unfavorable legal outcomes and of the strange alliances
this legal fidelity produced. Even as Nicoletti argues that law constrained
politics in the postbellum period she also illuminates the ways political considerations
shaped the course of the law—both the fear that Davis would be acquitted and,
as the political ground shifted, of taking a position on the matter at all.
Nicoletti has written a beautiful work of legal history about working lawyers
mired in legal and constitutional intricacies but fully aware of the
potentially earth-shaking political consequences of their actions. Secession on Trial opens up fresh
perspectives not only on the Civil War and Reconstruction but also the vexing
and variable relationship between law and politics.

The members of this year's Cromwell Book Prize subcommittee were Sophia Lee (University of Pennsylvania) (chair); Felice Batlan (Chicago-Kent College of Law); Jonathan Levy (University of Chicago); and Thomas Mackey (University of Louisville).

Via the American Society for Legal History, we have the official citation for the Cromwell Dissertation Prize, awarded this year to Alison Powers (Texas Tech University):

The
William Nelson Cromwell Foundation has generously funded a dissertation prize
of $5,000. The winning dissertation may focus on any area of American legal
history, including constitutional and comparative studies; topics dealing with
the colonial and early national periods will receive some preference. Anyone
who received a Ph.D. in 2017 will be eligible for this year’s prize.

Committee citation: This elegantly structured
and beautifully written dissertation explores the operation and eventual demise
of a system of international claims settlement tribunals established to
compensate property owners for foreign property expropriated and damaged by and
on behalf of the US Government in the second half of the nineteenth century.
Through deep, multi-archival research, Powers shows how the system created
unexpected opportunities for ordinary people to resist “settlement
colonialism”. Indeed, she argues that claims brought by ordinary people
transformed the commissions from showcases of US leadership in international
justice, into spaces where US imperialism was exposed to the world.

The members of this year's Cromwell dissertation prize subcommittee were Lisa Ford (University of New South Wales) (chair); H. Robert Baker (Georgia State University); Mary Sarah Bilder (Boston College); and Laura Weinrib (University of Chicago).Congratulations to Professor Powers!

Monday, December 17, 2018

Via the American Society for Legal History, we have the formal citation for this year's Sutherland Prize, which the Society awarded to Tom Lambert (Sidney Sussex College, Cambridge University):

The
Sutherland Prize, named in honor of the late Donald W. Sutherland, a
distinguished historian of the law of medieval England and a mentor of many
students, is awarded annually, on the recommendation of the Sutherland Prize
Committee, to the person or persons who wrote the best article on English legal
history published in the previous year.

Committee citation: The Sutherland Prize for 2017 is awarded for a piece
addressing the issue of jurisdictional rights in the tenth and eleventh
centuries. Such rights enabled their holders not merely to receive the revenues
associated with a particular offence but also to hold courts and enforce the
law in pursuance of such rights. Two separate views are identified within the
current historiographical debate about the existence and extent of such rights.
The first assumed that an entitlement to legal revenues brought with it an
entitlement to perform legal functions as well. The second took the view that
aristocratic legal privileges were fiscal rather than jurisdictional. Both, the
author notes, are premised on certain assumptions about the chronology of
feudalization. The author adopts an alternative approach, contending that ‘the
absence of explicit evidence for aristocratic possession of jurisdictional
rights before the Norman conquest … should be taken as a sign that
jurisdictional rights did not exist as things to be possessed or transferred.’
This, he notes, moves the focus away from feudalization to the issue of when
jurisdictional rights emerged as a form of property. The article goes on to
discuss the absence of jurisdictional rights in the tenth century, arguing that
this was because ‘the performance of functions relating to both judicial
decision-making and law enforcement was theoretically open to all’ and given
its demanding and sometimes dangerous nature was ‘understood to be more of a
burden than a privilege.’ Matters changed in the eleventh century, it is
suggested, because of economic incentives, with greater competition for legal
revenues leading to the performance of the associated legal functions being
perceived as a more desirable task. The result, as the author concludes, was
that ‘[g]radually and unevenly – and perhaps initially not very legalistically
– jurisdictional rights were probably emerging as a form of property in the
decades before the Norman conquest.’

The members of this year's Sutherland Prize Committee were Rebecca Probert (University of Exeter) (chair); Paul Halliday (University of Virginia); Allyson May (University of Western Ontario); and P.G. McHugh (University of Cambridge).Congratulations to Dr. Lambert!

This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process.

Via the American Society for Legal History, we have the formal citation for this year's Surrency Prize, which the Society awarded to Natasha Wheatley (Princeton University):

The Surrency Prize, named in honor of Erwin C. Surrency, a founding member and first president of the Society and for many years the editor of its former publication, the American Journal of Legal History, is awarded annually for the best article published in the Society’s journal, the Law and History Review, in the previous year.

2018 recipient: Natasha Wheatley “Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State,” Law and History Review 35 (August 2017): 753-757.

Committee citation: This article sheds important new light to on key question for international law: Who is a subject of international law? Focusing on the turbulent interwar period, Wheatley examines key juristic arguments and opinions as to when and how non-state entities might be rethought as subjects, rather than objects, of that law. Both theoretically sophisticated and methodologically innovative, this article tackles the question by way of an anthropology of international law’s fictional persons. Drawing on both published debates and archival sources – in both English and German – Wheatley focuses on what she labels ‘the conceptual process of birthing new subjects’. In striking prose (that itself employs illusion and figure to give life to this story) she brings to the fore the recurrent metaphors and analogies of the new interwar discourse – those groups and institutions who are likened to slaves, spectres, the unborn and embryos and the irregular, the temporary, the virtual, the suspended, the unfinished and the vacated. It is these, she persuasively argues, that play midwife to the birthing of the new subjects of international law. Importantly, Wheatley concludes that as late arrivals these new legal persons were coded by their prior absence – they could be embryonic, unfree or abnormal – but they all represented new ways of not being a state.

The members of the Surrency Prize Committee were Cornelia Dayton (University of Connecticut); Alison LaCroix (University of Chicago); Kunal Parker (University of Miami); and Laurie Wood (Florida State University).

Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history, with a preference for work that falls within Reid’s own interests in seventeenth- through nineteenth-century Anglo-America and Native American law.

Committee citation: Americans have long supposed that the adversarial trial, dominated by lawyers, was always at the heart of our legal system. Amalia Kessler’s deeply thoughtful Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (Yale University Press, 2017) persuasively challenges this supposition. Kessler shows how mid-nineteenth century debates over market regulation, the role of the legal profession, religion, and Reconstruction helped elevate adversarialism over more judge-centered quasi-inquisitorial alternatives. Beautifully written and deeply original in conceptualization, this wonderful monograph reframes and expands the history of legal procedure by situating it in a wide array of contexts that previous accounts had not connected together.

Sunday, December 16, 2018

I’ve
written already about constructingsyllabi
and choosing
readings for my legal history courses; today I’m going to focus on how I prepare for
class. (This may all be obvious for many readers, and much of it is not specific
to American legal history, but I hope that readers with little or no teaching experience
may find it of some interest. I know when I was first prepping my own courses, I
was extremely curious about how everyone else did it, and I benefited from many
colleagues’ generous advice.)

Prepping my first classes out of graduate
school required a giant shift in perspective. After years of narrowly focusing
my attention on the details of American administrative law and politics, I needed
to figure out big themes through which to tell the story of American legal history
over many centuries. I also needed to figure out how to balance big ideas and
granular detail in each day’s class. My dissertation adviser, Bill Novak, had
been exactly right when he told me that I should think about my oral exam lists
as setting me up to teach classes in that field, and it was a relief to
remember that I had taken detailed notes on a wide array of books and articles during
my preparation for oral exams years earlier. (I even had outlines—I had adapted
my law school outlining technique to help me organize my thoughts for my oral
exams.) My notes alone were often insufficient, of course, since they were largely focused on historiographical questions, but even just knowing
which books I could go back to was a huge help.

Also useful for seeing broad themes were
notes I’d taken as a law student in Richard Ross’s course on Colonial American Law
and notes I’d taken as a TA for courses including Bill Novak’s U.S. Legal
History class and Gerald Rosenberg’s Constitutional Law class. I could see in my
notes even years later that the most successful lectures were organized around
a single big idea, illustrated with concrete examples and then complicated and challenged
through counterexamples. (I even still have my handwritten notes for many college
history courses, but deciphering my college handwriting was perhaps a bridge
too far.) Graduate students reading this—take good (typed!) notes, and save
them! You never know what might be helpful in the future.

Figuring out how to balance the big
ideas with the granular details is, of course, always the challenge. Early on, I
assigned too much reading, and included too many details in my lectures, largely
out of terror that I would run out of things to say. As I became more
comfortable teaching, I pulled back some (a lot, actually) to give students more
time to engage with the readings and examples I did provide.

Some other habits I’ve adopted to make
class preparation easier (again, these are probably old hat for many of you, but
they are things I wish I’d known to do when I started teaching):

I keep fairly extensive lecture notes,
organized with bullet points into outlines so I can easily see where I am on
the page. I don’t bother with full sentences, but I include the broad point I
wanted to make, the examples/details/statistics I’ll need to read off the page,
the questions I want to ask students about the readings, and the specific quotes
from the reading I want them to discuss. I know that I can get through
exactly four and a half pages of my notes (single-spaced, 12 point font) in 80 minutes. (Only recently did I figure out how great it would be to increase the font size before printing.) I also know that from
experience I will not be able to get through more no matter how much I want to
or how quickly I talk. This is really helpful to know when I’m writing new
lectures. (I’ve also starting using my lecture note format when I give
conference papers; it allows me to be somewhat more relaxed in style, while
presenting in a format I’m used to doing multiple times a week.)

As soon as a syllabus is finalized and
handed out, I save a copy as “future syllabus 3XX” and add notes to it (moving
or removing certain cases that just don’t work with a particular day’s
material, noting at the top that I need to spend more time on A, B, or C, etc.)
I know I’m not going to remember the details of why something didn’t work a
year, or years, later, but it’s easy to go back to my office and simply move an
assigned reading from one day to another. It’s also a file where I can paste citations,
links, and stray thoughts (like “do a better job explaining negligence” or “read
this article before teaching Lochner
again”) to deal with later.

Further, when I
run across something online that I think might be interesting to use in one of
my classes someday (an image, a newspaper article, a Legal History Blog reference
to a new book or journal article, a digital history project, someone else’s
syllabus or reading list, a tweet with a great piece of teaching advice), I
immediately save it with Google Keep (which lives in my browser and requires a
single click; Evernote also works for this.) Evernote and Google Keep (and
probably a dozen more similar programs) store all kinds of materials and allow
you to tag your materials as you like. I’ve created tags for each of the
different classes I teach or might teach (as well as ones for various research
projects I’m working on, restaurant recommendations, travel ideas, etc.). I’ll
tag a link as soon as I save it, with whatever fits (the same article might be
of use in Legal History since 1850, Gender and the Law, and Constitutional
Law). Some of these classes I might not be teaching again for a few years, but
when I’m starting to think about ordering materials and revising the syllabus
for that class, I have a giant head start. It’s also a great way to keep track
of the teaching tips and interesting assignments people tweet about that can be
almost impossible to find weeks or months later.

Saturday, December 15, 2018

“On the evening of Monday, December 3, members of The Osgoode Society for Canadian Legal History and guests gathered in the beautiful convocation room at Osgoode Hall to celebrate the launch of two new books: A History of Law in Canada Volume 1: Beginnings to 1866 and The Class Actions Controversy: The Origins and Development of the Ontario Class Proceedings Act.” More, in Precedent Magazine.

Friday, December 14, 2018

James Gregory, Daniel J. R. Grey, and Annika Bautz (all from the University of Plymouth) have co-edited Judgment in the Victorian Agewith Routledge. From the press:

This volume concerns judges, judgment and judgmentalism. It studies the Victorians as judges across a range of important fields, including the legal and aesthetic spheres, and within literature. It examines how various specialist forms of judgment were conceived and operated, and how the propensity to be judgmental was viewed.

Here's the chapter line-up:Part I: The Judgment of the Law1. Cartes de visite and the First Mass Media Photographic Images of the English Judiciary: Continuity and Change. Leslie J. Moran2. Sir Redmond Barry and the Trial of Ned Kelly: representing the Judge and Judgment in Nineteenth-Century Australia. Alice Richardson3. The Emotional Reactions of Judges in Cases of Maternal Child Murder in England, 1840 –1900. Alison Pedley4. ‘What Will Most Tend Towards Morality’: Sir Cresswell Cresswell and the Divorce Court, 1858-1863. Gail Savage5. ‘Infamous Falsehoods’: Judges, Perjury, and Affiliation Trials in England, 1855–1930. Ginger Frost6. Authoritative Judgments in a Provincial Town: Responses to Everyday Offending in Plymouth 1860 – 1900. By Kim Stevenson and Iain Channing

Part 2: Judgments in Culture7. Judging the Judges: The Image of the Judge in the Popular Illustrated Press. Craig Newbery-Jones8. The Matter of Judgment: Comparing Gendered Perspectives on Victorian Legal Culture in Popular Literature. Judith Rowbotham9. The Operation and Representation of Art Judgment. James Gregory10. Judging by the Hand: Handwriting and Character in Victorian Literary Culture. Karin Koehler11. ‘They will not read it, but their sons & daughters may’: judging Percy Shelley’s Queen Mab (1813) in the nineteenth century. Cian DuffyFurther information is available here.

Thursday, December 13, 2018

Randy E. Barnett, Georgetown University Law Center, has posted After All These Years, Lochner Was Not Crazy — It Was Good, which appears in the Georgetown Journal of Law & Public Policy 16 (2018): 437-43

For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.

This Article analyzes John Calvin’s reformation of Western family law in sixteenth century-Geneva. Calvin depicted marriage as a sacred and presumptively enduring union, but also a conditional and breakable covenant with distinct and discernible goods and goals that couples and communities alike had to support. This covenantal framework gave Calvin new rationales for old rules concerning marital and non-marital sex and cohabitation, courtship and weddings, procreation, nurture, and education of children, and the punishment of adultery, polygamy, and “unnatural” sex within and beyond the marital bed. But Calvin also set out new teachings on the proper communal formation and maintenance of the marital covenant, and introduced into Genevan law the rights of husbands and wives alike to divorce and remarry in cases of hard fault.

Wednesday, December 12, 2018

The Tobin Project is seeking “talented recent graduates and current seniors” to “join our team as Research Analysts and Case Writers. Research Analysts work with leading social scientists and Tobin Project staff to generate and diffuse rigorous social science research aimed at solving important problems facing society. Case Writers translate such academic research into pedagogical case studies.

With the Social Science Research Council (SSRC), it is also requesting proposals for “graduate student research on ‘cultural capture’ and its relevance to executive branch rulemaking. Cultural capture refers to the possibility that informal connections between regulators and representatives of regulated industries, such as shared identities and overlapping social networks, may well lead to undue special interest influence. We are especially interested in proposals that will investigate the possibility of cultural capture through examination of ‘regulatory-adjacent spaces’—such as industry association meetings, policy conferences, and job fairs—where regulators and industry officials may socialize.” Deadline January 18, 2019

January 14 Panel Discussion: Joshua Shifrinson on Rising Titans, Falling Giant: How Great Powers Exploit Power Shifts; Joseph Parent and Paul MacDonald on Twilight of the Titans: Great Power Decline and Retrenchment; David Edelstein on Over the Horizon: Time, Uncertainty, and the Rise of Great Powers; Stacie Goddard on When Right Makes Might: Rising Powers and World Order

January 28 Derek Leebaert on Grand Improvisation: America Confronts the British Superpower, 1945-1957

February 4 Kathleen Day on Bankers, Bailouts, and the Struggle to Tame Wall Street

February 12* Fitzhugh Brundage on Civilizing Torture: An American Tradition

February 25 Kate Lemay on Triumph of the Dead: American WWII Cemeteries, Monuments, and Diplomacy in France

March 4 Stephan Kieninger on The Diplomacy of Détente: Cooperative Security from Schmidt to Shultz

March 11 Ngoei Wen-Qing on The Arc of Containment: Britain, the United States, and Anticommunism in Southeast Asia

March 18 Devin Fergus on Land of the Fee: Hidden Costs and the Decline of the American Middle Class

March 25 Gail Hershatter on Women and China’s Revolution

April 1 Sarah Igo on The Known Citizen: A History of Privacy in Modern America

April 4* Robert Jervis on How Statesmen Thing: The Psychology of International Politics

April 8 Jennifer Miller on Cold War Democracy: The United States and Japan

April 15 Daniel Immerwahr on How to Hide an Empire: A History of the Greater United States

April 22 Felix Boecking on No Great Wall: Trade, Tariffs, and Nationalism in Republican China, 1927-1945

April 29 Konrad Jarausch on Broken Lives: How Ordinary Germans Experience the Twentieth Century

May 6 Piotr Kosicki on Catholics on the Barricades: Poland, France and Revolution, 1891-1956

May 13 Joanne Freeman on The Field of Blood: Violence in Congress and the Road to Civil War

This article provides a survey and definition of the field of Commonwealth constitutional history since 1918, especially during and after global decolonisation. It asks what is Commonwealth constitutional history and how it differs from its English and Imperial counterparts. The article puts forward a working definition of Commonwealth constitutional history and introduces key and diverse writers who illustrate the range and potential of this history. The article provides an historiography and survey of constitutional history in the Pre-Commonwealth and Post-war Commonwealth periods while also assessing the opportunities of Post-British Commonwealth constitutional history. The objective of this article is to show how Commonwealth constitutional history can contribute to the historical study of state power and to see its worth to other disciplines and fields of history. Commonwealth constitutional history is a necessity to examine the politics, power and consequences of the British empire during the long age of decolonisation.

Tuesday, December 11, 2018

As I mentioned in
an earlier
post, a few years ago I decided to start assembling my own primary source
materials, tailored to the dates and coverage of my courses. (This also reduced
course costs—I post the materials via our course management system, allowing students
to print and/or view the materials online, as they like.) I initially expected the
process to be fairly straightforward; I had taught legal history courses many
times over, and thus knew what kinds
of materials would illustrate, complement, and complicate my lectures and the historical
scholarship I assigned. However, it turned out to be much more time consuming
than I had anticipated, because there’s just so much fascinating material one could assign, and it was so easy to go
down rabbit holes. Although I thought I knew what I was looking for, I kept finding
materials sources that were so intriguing that I rewrote some lectures entirely
in
order to include them.

The first and easiest
part of the task was gathering cases, statutes, and other sources I’d already
been teaching and wanted to continue using. For each, though, I now had to
decide how much of the original source to include. For example, I had long used
casebook excerpts of seventeenth and eighteenth-century Virginia statutes regarding
servitude and slavery, but there was so much rich and interesting material in
the statute books
that it was hard to figure out what to exclude. And editing nineteenth and twentieth-century
judicial opinions for an undergraduate audience required significant attention to
both length and clarity.

In other areas, I
knew only generally what I wanted (these included colonial cases involving
domestic disputes, and nineteenth-century private law cases with more
interesting fact patterns than the ones I’d been using). Without specific documents
in mind, I looked to the footnotes of relevant books and articles for ideas; I
also tried to browse online sources to the extent possible. For colonial
records, I am extremely thankful for archive.org, where it is easy to
full-text search many colonial legal reports. Here my strategy was to identify
something like Nathaniel B.
Shurtleff’s Records of the Governor and
Company of the Massachusetts Bay in New England, search various volumes for words like
“adultery” and “drunk,” and see what came up. (A lot.) And once I found an
interesting case, I could search the litigants’ names; I was happy (for me, of
course, not for them) whenever I found couples whose domestic strife kept them
returning to the courts. Similarly, in paging through the nineteenth-century legal
treatises available through HeinOnline (especially the Early American Case Law
and the Legal Classics collections) I found brief descriptions of and citations
to nineteenth-century tort and contract cases that seemed engaging and readily comprehensible.

Finally, I wanted to see what other kinds
of sources were out there, and I wanted to broaden my sources to showcase non-elite,
non-male, and non-white perspectives on law and legal change. Here too I looked
to the
footnotes of academic books and articles; I also went back to other people’s syllabi to see what sources they
included. (I’ve been collecting paper and electronic syllabi since I started
teaching. Online resources have significantly improved in recent years, and one
particularly useful collection of legal history can be found at the Triangle Legal
History Seminar’s website. Academic crowd-sourced reading lists of
primary and secondary sources like the Trump Syllabus 2.0
and the #CharlestonSyllabus—now
a book—are
another great resource. And The Docket
is planning a syllabus repository.)

At the end of the
day, of course, I found more material, and more ideas for hunting down even
more material, than I could ever use (or ask students to read). (I’ll describe
how I repurposed some of these sources for paper topics in a later post.) I
had, however, created collections that represented a broader set of voices and perspectives
and that I was excited to teach.

Thomas Simmons, University of South Dakota Law School, has posted Homestead: A (New) Hope, which appears in the South Dakota Law Review 63 (2018): 75-130:

A finely-tuned balancing of commercial enterprise against a family’s interests in shelter is at the heart of homestead exemption laws. In South Dakota, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article by this author, "Prequel to Homestead", outlined South Dakota’s homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota’s becoming a state in 1889. This article picks up where the prior article left off and presents judicial decisions dealing with the constitutional ambits of the homestead exemption beginning in 1889 and continuing through today. It concludes with an assessment of an unresolved homestead issue in the context of asset protection: whether a trust-owned or entity-owned home qualifies for homestead protection rights.

This study traces how Anglo-American legal thinkers used primitive law to develop their concepts of modern law in the century from Austin to Hart. It first examines how Maine developed his historical jurisprudence as a form of social evolutionary analysis of law. Next, it traces the development of legal anthropology as a distinct discipline combining the scientific method of participant observation with the legal method of the case study. Finally, it looks at how Hart uses primitive law to make his famous argument that law was ‘the union of primary and secondary rules’. In each case, legal thinkers develop their concepts of modern law through a foundational contrast with primitive law. This is a striking feature of much Anglo-American jurisprudence that cuts across the borders of the positivist, natural, historical, realist, and other schools of jurisprudence. Appreciating these new uses of primitive law is a first step in excavating an intellectual history of legal thought grounded in the context of colonial knowledge.

Monday, December 10, 2018

From our friends at the California Supreme Court Historical Society, we have word that Alexandra Havrylyshyn, a Robbins Postdoctoral Research Fellow and graduate of Berkeley Law, won first place in this year’s Selma Moidel Smith Law Student Writing Competition. Sponsored by the California Supreme Court Historical Society, the competition is judged by a panel of law professors and lawyers. The award recognizes excellent scholarship on any aspect of California legal history.

Credit: California Supreme Court Historical Society

Havrylyshyn’s paper, “How a California Settler Unsettled the Proslavery Legislature of Antebellum Louisiana,” will be published in the 2019 volume of California Legal History. The paper uncovers the little-known history of Judge John McHenry. During his time on the bench in Louisiana, McHenry interpreted proslavery laws so as to favor liberty for certain enslaved individuals. Relying on McHenry’s personal and legal papers (preserved at the University of California, Berkeley’s Bancroft Library), this article argues that a commitment to the rule of law, rather than a clear commitment to ending slavery, ultimately explains McHenry’s unpopular opinions. In a context of heightened sectional tension over the legality of slavery, McHenry departed Louisiana for California, where he was called upon to help frame the state’s first constitution.

[We're moving this announcement up, because the deadline for this excellent seminar (December 15) is approaching.] The Institute for Constitutional History is pleased to announce another seminar for advanced graduate students and junior faculty: Antislavery Constitutionalism: